Marquee Case On The Docket: Evenwel v. Abbott

In contrast to last year’s docket, the Supreme Court has found a relatively long list of items generally of interest only to lawyers this year. Whether this is by design is not clear: the Court has the ability to choose from among the cases that are presented to it, but not to control which cases are appealed to it in the first place. Still, it’s not all that surprising that in a Presidential election year the Court would prefer to keep a low profile.

However, there is a very big exception, and it’s set to be argued Tuesday morning. The stakes in Evenwel v. Abbott are the metrics of the democratic foundations upon which our government rests.

The late Chief Justice Earl Warren, when asked in the twilight of his career which case he was most proud of moving through the court, gave as his answer Reynolds v. Sims, 377 U.S. 533 (1964). The case stands, in summary, for the principle of “one person, one vote.” In his opinion, Warren wrote, “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” Id. at 562. The actual rule was restated in a bit more elaborately-phrased terms, a few years later: “[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior College District of Metropolitan Kansas City, Missouri, 397 U.S. 50, 56 (1970).

Reynolds v. Sims remains the law today, and the basic concept of equal representation is not directly questioned in Evenwel. But, should you imagine a cocktail of computers armed with more power and information than Chief Justice Warren could have imagined in 1964; a 2004 case establishing that partisan gerrymandering is fundamentally a political question and therefore beyond judicial review; and lawyerly cynicism concerning the phrase “equal numbers,” the result of that thought experiment may well look a lot like Texas does today.

The Texas Legislature is divided into a 150-member House of Representatives and a 31-member Senate. Each are elected from a single-member district. The results of the most recent elections are as follows:

Within those numbers, a more detailed tale is told. As we shift from the 2008 election to the 2010 election, Republicans took control of a large number of formerly Democratic seats in north Texas and in other suburban areas around the state. Geographically, the Democrats are left with pretty much only legislative seats representing the core urban areas of the four large metro areas and the Mexican border. Effectively, with the Republicans having edged the remnants of the old Dixiecrats out of that region of the state known as “North Texas,” every non-urban or non-border district in both houses of the state legislature is now controlled by the GOP. With the aid of gerrymandering, we see a nearly 2:1 partisan advantage resulting.

Texas was one of the fifteen states that under the Voting Rights Act was required to gain “pre-clearance” for its apportionment plans by the U.S. Justice Department. Thus, after the 2010 census, the Texas Legislature produced a plan called “S148,” named after its corresponding legislative bill. S148 was drafted with the assistance of extremely powerful and sophisticated voter-mapping software, the likes of which were not within the realm of imagination in 1964 but which are today sold to the general public. The Texas Legislature apportioned districts that are, pretty much, equal in terms of the overall population of each, but not at all equal in terms of the numbers of either eligible voters or actually registered voters in each: Some people don’t get the vote, after all: minors, foreign nationals, felons. Still other people can register, but do not.

Sue Evenwel is the Chair of the Titus County Republican Party. ¹ She lives in a rural district near Texarkana in which there is a high proportion of actually registered voters from among the population of eligible voters as compared with other districts – meaning the urban cores of big cities like Dallas, Houston, San Antonio, and Austin. ² Her lawyers cite this critical passage from Reynolds:

[I]f a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” Reynolds, supra, at 562.

Evenwel’s contention is that, since she is in a district where there are lot of other voters, in order to elect a member of the state legislature her vote has been diluted compared to a vote in the low-registration district. Ms. Evenwel’s voting power is, she claims, diluted by a factor of 61%. In other words, if she gets one vote, the voter in the other district gets the equivalent of 1.64 votes because that voter has fewer other registered voters with whom to “compete” for expressing an electoral preference. Because her vote isn’t as powerful as that of Texans in those more urban areas, she doesn’t enjoy an equal franchise with those voters.

The State of Texas says, in response, that Evenwel’s district, consistent with the status quo ante, has about the same number of people as other S148 districts. This, Texas says, is in compliance with the the Fourteenth Amendment’s requirement that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state….” Amend. XIV, sec. 2, emphasis added. The appropriate metric of equal representation is not how powerful an individual voter is, but how many people reside in a district.

The Supreme Court will be asked whether application of the “one person, one vote” principle must today take cognizance of the fact that not all people are eligible to vote, not all of them actually vote, and that modern political science has measured and determined what sorts of people are more likely to vote.

If Ms. Evenwel prevails, the practical result will be to shift voting power out to rural areas and away from urban areas – as Adam Liptak wrote in the Grey Lady when the case was first put on the High Court’s docket:

Counting all people amplifies the voting power of places with large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

The practical effect of Ms. Evenwel prevailing will be to shift the focus of political power away from urban areas, where relatively larger numbers of people who are not eligible voters live as compared to rural areas. This is a matter of particular focus in Texas because the trend of increasingly powerful Latino voters there is thought to contain the potential to shift the balance of political power in that state to Democrats in future elections cycles, after re-apportionment following the 2020 census. Though the prospect for change may be be especially dramatic in Texas, it may be of great significance for the entire country. Ms. Evenwel’s goal here is not just to solidify Texas Republicans’ already-impressive control: it is to offer Republicans in other states the ability to make their Legislatures look more like Texas’.

Ms. Evenwel’s brief may be found here, and an important supporting amicus brief by the American Civil Rights Union may be found here. You may well ask, “Burt, what is the historically-liberal American Civil Liberties Union doing taking the side of a Republican Party activist looking to enlarge white voting power at the expense of Latinos?” I’d tell you to go back and look more closely at the identity of the amicus here — the American Civil Rights Union is a conservative advocacy group, one which has chosen a name and acronym that looks suspiciously similar to that of the ACLU. I’d also tell you not to feel to bad because, I got fooled the first time I read that too, looking to get a quick jump on the merits.

Still, I recommend the ACRU brief anyway, precisely because the brief makes a very interesting point. When it enforces the Voting Rights Act, the Department of Justice analyzes districts based on eligible voter population, not general population, to determine compliance with the Voting Rights Act. If this case can be resolved on statutory grounds without reaching the Constitutional issue of interpreting the equal protection clause, then the Supreme Court is (theoretically) bound to resolve the matter by statute rather than by the Constitution. How, then, to read the statute? A rule known as “Chevron deference” is that any reasonable interpretation used by the agency in charge of implementing a statute is one that the Court will also apply. The Justice Department’s use of eligible voters rather than gross population as its metric for determining whether a district has been racially gerrymandered thus looms over the decision significantly in Ms. Evenwel’s favor.

In support of the status quo ante (that gross population is the appropriate apportionment metric), the State of Texas’ brief may be found here. ³ You may ask, “Burt, isn’t Texas controlled by Republicans at the moment? Why are Texas politicians arguing against their own political interests?” But, of course, state officials are charged by law with defending the state’s laws whatever they are. So how will the Republican Solicitor General thread that needle?

It seems to me that if you read Texas’ brief very closely, it hints at a rule which maximizes the discretion of state legislatures to apportion by whatever method they choose. In this case, the Texas Legislature used gross population, but, if Texas had chosen to do so, it could have used adult population, eligible voters, or registered voters instead of gross population.

How will the legal question resolve? Making a prediction on that question requires asking how principled (as opposed to how partisan) the various Justices will be when the question is put before them in conference.

The text in Reynolds refers to”people,” not “voters,” and the Fourteenth Amendment refers to “persons,” not “voters” or even “citizens.” Justices using a raw textual argument seems pretty clearly bound to rule against Evenwel to me.

It seems abundantly clear from the legislative history that the Fourteenth Amendment was meant to guarantee the electoral power of newly-emancipated slaves – and thus by extension, or so it might be argued, racial minorities. Voter registration wasn’t necessarily a concern or even a practice in Reconstruction-era  America. Indeed, there is a solid argument that voter registration was itself created for the purpose of disenfranchising the very people the Fourteenth Amendment sought to enfranchise. An “intent of the Framers” lens also aims the decision at a vote in favor of the respondent as well.

A federalism-heavy analysis would come down on the side that Texas’ brief hints at but does not overtly request: that as long as the metric chosen by the state is reasonable, and the result is an equal number of whatever metric is chosen in each district, the Fourteenth Amendment is satisfied. This would lead to a vote in favor of Texas in this case, but leave the door open for a state that used the voter registration metric after some future reapportionment.

But, a Justice at pains to assume a posture of judicial modesty and deference to legislatures would, or at least could, resolve the matter through analysis of the Voting Rights Act’s statutory protection against racial gerrymandering, defer to the Justice Department’s use of registered voters as the metric to determine equality of voting, and thus could wind up voting in favor of Ms. Evenwel. For such a line of reasoning, the Constitution would not be the turning point.

A ruling in favor of the respondent looks to me to be the result that both applying the text of the Constitution and its intent compels. Still, at least four Justices thought that the argument about the proper metric of apportionment was worthy of consideration – so I can’t predict actual unanimity. We might see some Justices not going as far as Ms. Evenwel urges and saying the right metric of equal voting means equal voting power. If so, then we can expect dissent.

Others might say that a state can choose that metric, but that Texas did not do so here, and that gross population is a fine metric, too. I think we’ll get at least Scalia and Kennedy voting this way, concurring with the the majority. ⁴ Should they do so, they would likely lay the groundwork for a challenge to reapportionment after the 2020 census. It seems all but inevitable to me that we’ll be revisiting this same issue ten years from now – as inevitable as the likelihood that by then, the membership of the Court will have changed substantially.

1. Ms. Evenwel’s personal contact information can be readily found on the Internet, including at the linked page. I’m sure that partisans are sending her lots of unpleasant communications opining about the effort being undertaken in her name with various levels of understanding of what’s actually at stake. Let’s no one from this blog contribute to this, please.
2. Especially Austin, I’m willing to bet.
3. The United States of America has filed a brief taking Texas’ side of the dispute. And, for what it’s worth, the actual ACLU brief, in support of Texas, can be read here.
4. It’s just possible that this case might give us an unusual high-profile split between Justices Scalia and Thomas. They voted together 78% of the time last term; the Court’s closest cousins in voting patterns, however, are the Ginsburg-Breyer-Sotomayor-Kagan bloc, who vote together more than nine times out of ten.